Why is the Far Right Rejoicing About Roberts’ Nomination?

To: Journalists
Fr: Ralph G. Neas, President, People For the American Way
Re: Why is the Far Right Rejoicing About Roberts’ Nomination?

“The President … promised to nominate someone along the lines of a Scalia or a Thomas and that is exactly what he has done.” -Tony Perkins, Family Research Council, New York Times, July 20, 2005

Radical Right Leaders Celebrate Roberts Nomination

In the days leading up to President Bush’s announcement, far-right activists were brutally straightforward about what they wanted and believed they were owed in a Supreme Court nominee. They denounced the very idea of consensus and compromise and they savaged potential nominees they deemed insufficiently committed to right-wing judicial activism, including Attorney General Alberto Gonzales. Right-wing leaders implored President Bush not to find a replacement in the mold of Sandra Day O’connor, a mainstream conservative who was often the swing vote on cases involving fundamental rights and liberties. Instead they demanded judges in the mold of right-wing activists Antonin Scalia and Clarence Thomas.

Those same right-wing leaders are unanimous in their support for Supreme Court nominee John Roberts. Pat Robertson, James Dobson, Tony Perkins, Gary Bauer, Manny Miranda, Operation Rescue, and other radical right leaders and groups are raving about Roberts as “exceptional,” “refreshing,” and “outstanding.” “President Bush has guaranteed he would appoint a U.S. Supreme Court Justice with a Thomas-Scalia type judicial demeanor,” said the president of the Alabama Christian Coalition. “The President has once again followed through on his word….”

The enthusiastic embrace of John Roberts by radical right leaders who have been demanding more far-right activists like Scalia and Thomas on the Court should sound alarm bells for senators and for Americans who want Supreme Court justices who will uphold the rights and legal protections that the far-right is eager to dismantle – equality under the law, environmental protection, privacy, reproductive choice, church-state separation, and more.

What if Roberts is the Scalia-Thomas Justice Demanded by the Right?

There’s a reason why those on the far right are such big fans of Scalia and Thomas: their beliefs are stunningly radical. A Supreme Court controlled by Scalia and Thomas and justices like them would deprive Americans of many of their rights, freedoms, and legal protections. Such a Supreme Court would turn back the clock on many of the social justice gains of the last 70 years and could even return us to a pre-New Deal era of jurisprudence, when programs to protect workers and help the nation recover from the Great Depression were declared unconstitutional. A Scalia-Thomas Court could overturn more than 100 precedents. Replacing Justice O’Connor with someone in the mold of Scalia and Thomas would move the Court dangerously in that direction.

Under a Supreme Court controlled by Scalia and Thomas and similar justices, rights that most Americans take for granted would be curtailed, including freedom of speech and expression, the right to privacy, and religious liberty free from government interference or coercion. Basic constitutional principles including equal justice under the law, and one person, one vote would be torn to shreds. Environmental protections would be rendered unconstitutional, as would legislation giving patients the right to have doctors—not HMO bureaucrats—make life-or-death medical decisions.

This is not crying wolf. It is an all-too-real possibility that is outlined by Scalia and Thomas in their own speeches and Supreme Court opinions.

Far-Right Leaders Close to the Court of Their Dreams

As People For the American Way Foundation has documented in its Courting Disaster reports, more than 100 Supreme Court precedents protecting seven decades of social justice gains could be overturned or undermined if even one or two more justices who share the judicial philosophies of Justices Clarence Thomas and Antonin Scalia are appointed to the Court. Updated in June 2005, Courting Disaster (link) examines the dissenting and concurring opinions of Justices Scalia and Thomas, dating back to 1986 and 1991 respectively, and asks how American law and society would be different if their opinions were in the majority on the Supreme Court.

Dozens of precedents could fall if Justice O’Connor—often the swing vote—is replaced by a justice who shares the judicial philosophies of Scalia and Thomas. And of course, the current vacancy could be only the first of several over the next few years. It has been 11 years since the last vacancy, the longest interval without an appointment in 182 years, since the administration of James Monroe in 1823. Since 1950, there has been on average one vacancy about every two years. We could be entering a period with multiple vacancies, comparable to the four vacancies between 1969 and 1972 and the five vacancies between 1987 and 1994.

A Radical Ideology with Serious Consequences

Far-right ideologues want a Supreme Court dominated by Antonin Scalia and Clarence Thomas because they believe a radically different America would result. Scalia’s and Thomas’s speeches, writings, and Supreme Court opinions make it clear that the far-right ideologues are probably correct. Indeed, the America that Justices Scalia and Thomas envision would be virtually unrecognizable to most of us.

Their America is an association of states that have the power to run roughshod over Americans’ fundamental freedoms – and where any government can intrude into the most personal details of people’s lives because there is no right to privacy. In their America, state and local governments can establish official religions and keep controversial ideas from reaching the public, while individuals lose protections against discrimination in the workplace, classroom, or voting booth.

In this America, citizens are powerless against manufacturers that pollute our environment and HMOs that refuse to pay for needed medical treatment. This is an America of “minimum” civil rights and liberties, where 200 years of progress towards equality and justice comes to a halt. In this America, the government has no obligation to inform arrested persons of their rights, and citizens can be labeled “combatants” and detained without access to legal representation.

As this document makes plain, the term “radical” seriously understates the changes those on the far right seek. Their extreme ideology is stridently retrogressive, and it contradicts what the vast majority of Americans believe. These far-right activists want the Supreme Court to be an extension of their political power and dramatically reshape our nation.

America Needs to Know

It is deeply disappointing that President Bush passed up the opportunity to choose a consensus nominee in the mold of Sandra Day O’Connor. John Roberts’ record raises serious concerns and questions about where he stands on crucial legal and constitutional issues. It will be extremely important for Senators and the American people to get answers to those questions – and to find out whether right-wing leaders are correct that Roberts is in the mold of Scalia and Thomas. It is up to John Roberts to demonstrate that he is committed to upholding Americans’ rights and legal protections. Replacing O’Connor with someone who is not committed to doing so would create far-reaching and long-lasting harm to Americans’ lives and liberties.

What follows is a detailed analysis of the consequences for Americans if the positions taken by Thomas and Scalia became the consistent majority positions of the Supreme Court.